Com. v. Schmidt, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH SCHMIDT :
:
Appellant : No. 1894 EDA 2020
Appeal from the PCRA Order Entered August 19, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0005579-2018
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED AUGUST 6, 2021
Joseph Schmidt appeals from the August 19, 2020 order denying him
relief under the Post-Conviction Relief Act (“PCRA”). Counsel has filed a brief
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc),1
together with an application to withdraw. After thorough review, we grant
counsel’s application to withdraw and affirm the order denying PCRA relief.
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* Retired Senior Judge assigned to the Superior Court.
1 Counsel styled the brief filed on Appellant’s behalf on appeal as one filed
pursuant to Anders v. California, 386 U.S. 738 (1967), rather than as a brief
pursuant to Turner/Finley. We find the procedure acceptable as the
requirements of Anders are more arduous than Turner/Finley. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004)
(recognizing that direct appeal procedure imposes stricter requirements than
Turner/Finley). We will refer to the brief herein as a Turner/Finley brief.
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A short summary of the underlying facts suffices for our review.
Appellant was charged with aggravated assault, two counts of simple assault,
one count each of recklessly endangering another person (“REAP”),
harassment, unlawful restraint, and false imprisonment arising from his
August 3, 2018 assault upon his live-in girlfriend, Julie Darling. After slapping
her repeatedly about her head and body, hitting her, and pulling her hair,
Appellant punched her in the face, fracturing her orbital bone and right eye
socket. As a result of the injuries, Ms. Darling could not work for a month and
required specialized medical treatment to care for her eye. See Stipulated
Bench Trial, 6/4/19, Exhibit C-1 (Stipulated Facts).
On June 4, 2019, the date scheduled for a jury trial, Appellant proceeded
to a stipulated bench trial on the aggravated assault charge, in return for
which the Commonwealth withdrew the six remaining charges. There was no
agreement as to sentence. At the time, both the Commonwealth and defense
counsel believed that Appellant’s prior record score (“PRS”) was one, and that
the standard minimum sentence for aggravated assault with a PRS of one was
forty-two to sixty months of imprisonment. At the stipulated bench trial, an
on-the-record jury trial waiver colloquy was conducted. Appellant stated that
he understood his right to a jury trial and what he was foregoing by agreeing
to a stipulated bench trial. Appellant also advised the court that he did not
want to exercise his other options of a bench trial or a guilty plea.
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The court found Appellant’s waiver of both his Fifth Amendment right
against self-incrimination and right to a jury trial to be knowing, intelligent,
and voluntary. Id. at 17. Following a proffer on the aggravated assault
charge, the court concluded that the Commonwealth had met its burden of
proof. Accordingly, the court found Appellant guilty of that charge, and nolle
prossed the remaining charges. Sentencing was deferred to permit a
presentence investigation (“PSI”).
The PSI subsequently revealed that Appellant’s PRS was not one, but
rather that it fell within the repeat felony one and felony two offender (“RFEL”)
category. The standard range minimum sentence for aggravated assault with
a PRS of RFEL was eighty-four to 102 months. In light of the mutual mistake,
however, defense counsel and the Commonwealth negotiated a sentence of
forty-eight to ninety-six months of imprisonment, which was a standard range
sentence for an individual convicted of aggravated assault with a PRS of one.2
At the October 1, 2019 sentencing hearing, the trial court questioned
Appellant to ensure that he understood that his PRS of RFEL substantially
increased the standard range minimum sentence for aggravated assault to
which he was exposed. Defense counsel placed on the record the
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2 The Commonwealth earlier had offered Appellant a negotiated plea based on
its belief that his PRS was one. If Appellant pled guilty to aggravated assault,
the Commonwealth would withdraw all other charges and he would be
sentenced to four to eight years of imprisonment. Appellant rejected the
Commonwealth’s offer.
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misunderstanding involving Appellant’s PRS, and Appellant acknowledged his
understanding that “the low end” of the range of sentence based on his PRS
as a RFEL was seven years of imprisonment. N.T. Sentencing Hearing,
10/1/19, at 7. Appellant confirmed that counsel had provided him with post-
sentence procedures, and that he had signed and initialed the pages. Id.
Appellant, in response to further questioning by the court, stated that he
wanted to enter the sentencing agreement, and acknowledged that he was
getting a significant reduction in sentence by virtue of the agreement. Id. at
8. Based on the foregoing, the trial court found that Appellant knowingly,
voluntarily, and intelligently agreed to the negotiated sentence, and accepted
the agreement. The court imposed the sentence of four to eight years of
imprisonment, with credit for time served, and orally advised Appellant again
of his post-sentence rights. Id. at 15.
Appellant did not file a timely post-sentence motion or a notice of
appeal. However, in pro se correspondence to the court bearing the date of
October 8, 2019, Appellant stated that counsel had abandoned him and asked
that the letter be treated as a post-sentence motion and that he be permitted
to withdraw his guilty plea. The court received the correspondence on October
15, 2019, and immediately forwarded it to trial counsel. See PCRA Court
Opinion, 1/22/21, at 6 n.9.
On February 21, 2020, Appellant wrote to the court seeking
reinstatement of his appellate rights nunc pro tunc. The court treated the
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correspondence as a PCRA petition, appointed Attorney Matthew W. Quigg as
PCRA counsel, and forwarded the correspondence to counsel. See Order,
2/25/20, at 1. PCRA counsel filed an amended PCRA petition on Appellant’s
behalf, which he styled as a Petition to Reinstate Post-Sentence and Appeal
Rights. Appellant averred therein that trial counsel was ineffective because
he failed to file a post-sentence motion raising two issues that Appellant asked
him to raise, namely: (1) that Appellant entered into the stipulated jury trial
under the counseled mistaken belief that he possessed a PRS of one, when he
was actually a RFEL, “thereby greatly increasing the applicable sentencing
guidelines[;]” and (2) that Appellant wished to seek modification of his
sentence. See Petition to Reinstate Post-Sentence and Appeal Rights,
7/28/20, at 3 ¶ 11(a) and (b). Appellant also alleged that counsel failed to
file the appeal he requested. Id. at ¶ 14. Appellant alleged that due to trial
counsel’s ineffective assistance, his post-sentence motion and direct appeal
rights should be reinstated nunc pro tunc.
The PCRA court held an evidentiary hearing on August 18, 2020, at
which Appellant and trial counsel offered contradictory factual testimony about
the allegations in the petition. Following the PCRA hearing, the court
dismissed Appellant’s amended petition.
Appellant filed a notice of appeal and complied with the PCRA court’s
subsequent order to file a concise statement of errors complained of on appeal
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pursuant to Pa.R.A.P. 1925(b).3 The trial court penned its Rule 1925(a)
opinion. PCRA counsel sent Appellant a no-merit letter on April 13, 2021, and
filed a petition to withdraw pursuant to Turner/Finley with this Court,
together with a brief. The petition was referred to the panel for disposition.
Counsel identifies one issue that Appellant wishes us to review:
I. Did the PCRA court err in denying Appellant post-conviction
relief where Appellant testified that he directed
trial/sentencing counsel to file post-sentence motions and
notice of appeal and trial/sentencing counsel failed to file
post-sentence motions or notice of appeal to the Superior
Court?
Turner/Finley brief at 4 (unnecessary capitalization omitted).
Where, as here, counsel seeks to withdraw pursuant to Turner/Finley,
we must first determine if he has complied with the pertinent requirements.
First, counsel must conduct an independent review of the record.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Thereafter,
counsel must file a “no-merit” letter detailing the nature and extent of his
review and list each issue the petitioner wishes to have examined, explaining
why those issues are meritless. He must file a petition to withdraw and
provide Appellant with copies of the petition and no-merit letter. In ruling on
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3 PCRA counsel failed to file a timely appeal from the PCRA court’s dismissal
of Appellant’s PCRA petition. However, counsel filed a petition to reinstate
Appellant’s PCRA appellate rights nunc pro tunc, and the Commonwealth
notified the PCRA court that it had no objection. By order of October 7, 2020,
the court reinstated Appellant’s PCRA appellate rights, and counsel complied
with its direction to file a notice of appeal within thirty days.
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whether counsel may withdraw, the court must conduct its own independent
evaluation of the record and agree with counsel that the petition is without
merit. See Pitts, supra at 876 n.1; Commonwealth v. Rykard, 55 A.3d
1177, 1184 (Pa.Super. 2012).
By letter dated April 13, 2021, counsel informed Appellant that after
thorough review of the record, his claim for relief under the PCRA “lacks
arguable merit.” See No-Merit Letter, 4/13/21, at 1. He explained why the
arguments Appellant wished to advance were meritless. Counsel enclosed a
copy of his motion to withdraw, as well as transcripts from the PCRA hearing,
stipulated trial, and sentencing. He advised Appellant that he could hire
private counsel or represent himself on appeal.
Counsel addressed in the letter and in the brief filed in this Court the
issues set forth in Appellant’s PCRA petition and Rule 1925(b) concise
statement. Counsel explained why they were meritless, represented that he
had reviewed the record, and concluded that the appeal was wholly frivolous.
We find that counsel complied with the requirements of Turner/Finley.
Hence, we will proceed with our independent review of the record for purposes
of determining whether the appeal is indeed meritless.
In an appeal from the PCRA court’s determination, we review “the
court’s findings of fact to determine whether they are supported by the record,
and review its conclusions of law to determine whether they are free from
legal error.” Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super.
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2014) (citation omitted). In doing so “[w]e review an order dismissing a
petition under the PCRA in the light most favorable to the prevailing party at
the PCRA level.” Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super.
2010).
Appellant’s issue implicates trial counsel’s effectiveness. In order to
prevail on such claims, a petitioner “must plead and prove that (1) the claim
of ineffective assistance has arguable merit; (2) counsel has no reasonable
strategic basis for the action or inaction designed to further the interests of
the [petitioner]; and (3) the [petitioner] was prejudiced such that there is a
reasonable probability that but for counsel’s action or inaction, the outcome
of the proceeding would have been different.” Commonwealth v. Diaz, 226
A.3d 995, 1018 n.1 (Pa. 2020) (citing Strickland v. Washington, 466 U.S.
668 (1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)).
At the PCRA hearing, Appellant testified that he agreed to the stipulated
bench trial based on counsel’s representation that he had a PRS of one and
that he would be sentenced to time served if he admitted his guilt. He
maintained that he would have pursued a jury trial had he known that a time-
served sentence was out of reach.
Trial counsel acknowledged that he and the Commonwealth operated
under the mistaken belief that Appellant’s PRS was one, and that he made
that representation to Appellant. However, trial counsel specifically stated, “I
would have never [said that he would be sentenced to time served] because
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going by the facts of the case, knowing the testimony that the complaining
witness was going to give, and again knowing the other facts of the case, I
would have never said that a time served sentence would have been likely or
honored.” N.T. PCRA Hearing, 8/18/20, at 9-10.
The PCRA court found that “trial counsel credibly testified that he never
informed [Appellant] that he would receive a time-served sentence even when
the parties were operating under the assumption that [Appellant’s] prior
record score was one (1).” PCRA Court Opinion, 1/22/21, at 11. Thus, it
found that trial counsel did not represent that Appellant would be sentenced
to time served as an inducement to enter the stipulated bench trial. 4 The
PCRA court found further that Appellant’s responses to the sentencing colloquy
belied any claim that his decision to proceed with a stipulated bench trial was
not voluntary, knowing, or intelligent. Id. at 9. According to the PCRA court,
“[Appellant] never indicated any displeasure with his negotiated sentence, nor
did he express any confusion regarding the effects of the recently discovered
error in the prior record score.” Id. at 11.
Counsel and Appellant offered contradictory testimony at the PCRA
hearing as to whether Appellant asked counsel to file a post-sentence motion.
Counsel testified that he learned for the first time that Appellant wanted to
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4 We note that the standard guideline sentence for aggravated assault and a
PRS of one was forty-two to sixty months of imprisonment. At the time of the
stipulated bench trial, Appellant had been incarcerated for approximately ten
months.
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file such a motion when he received a copy of the letter forwarded by the trial
court long after the ten-day period for filing such motions had expired. See
N.T. PCRA Hearing, 8/18/20, at 39. Appellant testified that he instructed trial
counsel to withdraw his “guilty plea” immediately prior to sentencing but
counsel ignored this request. Id. at 15. Trial counsel testified, however, that
Appellant knew he could not get a more favorable sentence than four to eight
years of imprisonment, and that was the reason why Appellant did not express
any reservation at sentencing to the agreed-upon sentence. See id. at 35.
Based on the foregoing, the PCRA court found credible trial counsel’s
testimony that Appellant did not ask him to file a post-sentence motion. PCRA
Court Opinion, 1/22/21, at 8. Furthermore, the PCRA court reasoned that
even if the forwarded letter to counsel could be construed as a valid request
for a post-trial motion that counsel ignored, Appellant could not establish
prejudice due to counsel’s failure to act as the court would not have granted
such a motion. Id. Moreover, the PCRA court found no prejudice as Appellant
“benefitted from the prior record score error and received a sentence which
was far more favorable that he would have received otherwise.” Id.
Additionally, the PCRA court discredited Appellant’s claim that he asked
counsel to file an appeal. The court found that “[a]lthough [Appellant] claimed
that he requested trial counsel to file an appeal, trial counsel credibly testified
that [Appellant] failed to make such a request. Id.
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In short, the PCRA court did not believe Appellant’s version of the
events. The law is well settled that “[t]he findings of a post-conviction court,
which hears evidence and passes on the credibility of witnesses, should be
given great deference.” Commonwealth v. Jones, 912 A.2d 268, 293 (Pa.
2006). See also Commonwealth v. Widgins, 29 A.3d 816, 820 (Pa.Super.
2011) (holding questions of credibility in PCRA proceedings are the exclusive
province of PCRA judge as factfinder). “In addition, where a PCRA court’s
credibility determinations are supported by the record, they are binding on
the reviewing court.” Commonwealth v. White, 734 A.2d 374, 381 (Pa.
1999).
In sum, the PCRA court expressly found that counsel did not represent
to Appellant that he would get a time-served sentence if he proceeded to a
stipulated bench trial, even when he believed that Appellant had a PRS of one.
Furthermore, the court credited trial counsel’s testimony that Appellant did
not ask him to file a post-sentence motion or a direct appeal. We are bound
by those credibility determinations as they are supported by the record.
Moreover, the court found that Appellant could not establish prejudice as any
post-sentence motion would have been unsuccessful. The PCRA court noted
that Appellant agreed to a stipulated trial and no agreement as to sentence
believing he had a PRS of one. However, the court reasoned that Appellant
was in no worse position at sentencing because he received an agreed-upon
sentence that was within the standard range for a PRS of one. In light of the
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fact that Appellant’s PRS was actually RFEL, the court concluded that Appellant
benefitted from the mistake as he received a sentence well below the
mitigated range for an individual with a PRS of RFEL.
Following our independent review of the record, we concur with PCRA
counsel’s assessment that there are no non-frivolous issues for appeal and
that the PCRA court did not abuse its discretion in denying relief. Our review
has not revealed any other non-frivolous issues that could have been raised.
Hence, we affirm the PCRA court’s order and grant counsel’s petition to
withdraw.
Application to Withdraw of Matthew W. Quigg, Esquire is granted. Order
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2021
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